Civil Rights Settlement Requires Major Real Estate Developer To Make Rental Complexes Accessible To All New Yorkers

Preet Bharara, the United States Attorney for the Southern District of New York, announced today that the United States has reached a settlement that resolves a federal civil rights lawsuit against THE DURST ORGANIZATION, INC. (“DURST”), a major real estate developer based in New York City, and DURST’s affiliates and subsidiaries.  The lawsuit alleges that DURST engaged in a pattern and practice of developing rental apartment buildings that are inaccessible to persons with disabilities.  Under the settlement, DURST agrees to establish procedures to ensure that its ongoing and future development projects, such as the 2,400-unit Halletts Point development in Queens and the 709-unit VIA 57 West development in Manhattan, will comply with the accessibility requirements of the federal Fair Housing Act (“FHA”).  DURST also agrees to make two apartment buildings in Manhattan containing more than 1,000 units – The Helena and The Epic – more accessible to individuals with disabilities.  Finally, DURST agrees to provide up to $515,000 to compensate aggrieved persons and pay a civil penalty of $55,000.  The settlement was reached after the court denied DURST’s motion to dismiss the government’s lawsuit and was approved yesterday by U.S. District Judge Ronnie Abrams.

Manhattan U.S. Attorney Preet Bharara said: “This is the ninth in a series of lawsuits that this office has brought against real estate developers and architects who fail to design and construct new apartment buildings accessible to people with disabilities.  When the government filed this lawsuit, Durst claimed that it should not be held responsible for inaccessible conditions at The Helena and other rental buildings – despite the fact that Durst’s own website trumpets its role in developing those buildings.  It was only after the Court rejected Durst’s argument that Durst finally accepted its obligations under the law.  Today’s settlement with Durst makes clear that real estate developers cannot hide behind opaque corporate structures to evade their obligation to comply with the Fair Housing Act or avoid liability for violating that Act.”                                                     

The FHA’s accessible design and construction provisions require new multi-family housing complexes constructed after January 1993 to have basic features accessible to persons with disabilities.  In April 2014, the United States filed this lawsuit against DURST and an architectural firm, alleging that past and ongoing rental projects designed and constructed by DURST and the architect, including The Helena, did not comply with the FHA’s accessibility requirements.  Inaccessible features at The Helena were first brought to the attention of the United States by testing performed by the Fair Housing Justice Center.

In September 2014, DURST moved to dismiss the government’s complaint on the grounds that DURST itself could not be held liable under the Fair Housing Act because it was not involved with developing any of the rental buildings at issue.  The government opposed that motion, noting that DURST’s public statements on its own website described its executives’ direct involvement with the design and construction of buildings like The Helena.  On January 9, 2015, the court denied DURST’s motion to dismiss.  Shortly thereafter, DURST pursued settlement discussions with the government.    

Under the settlement, DURST agrees that, for every multi-family housing project it constructs in the next three years, it will retain an FHA compliance consultant to ensure that the building, as constructed, will comply with the FHA’s accessibility requirements.  For example, the FHA consultant will advise DURST on the selection of fixtures and appliances and whether deviating from the architects’ drawings will affect accessibility.  The FHA consultant also will conduct a site visit to identify non-compliant conditions and recommend appropriate solutions prior to the completion of construction.  In addition, DURST agrees to institute policies and training to ensure that its own employees and agents will comply with the FHA’s accessibility requirements.

Further, the settlement also requires DURST to make extensive retrofits at The Helena, and to commit to additional retrofits at The Epic once that building has been inspected, to make these buildings accessible. 

Finally, the settlement requires DURST to provide up to $515,000 in funds to compensate aggrieved persons.  DURST also agrees to pay a civil penalty of $55,000. 

The government’s lawsuit also asserted claims against the architect of The Helena, FXFOWLE ARCHITECTS, P.C.  Those claims remain pending while FXFOWLE pursues settlement negotiations with the government.   

Aggrieved individuals may be entitled to monetary compensation from the fund created through today’s settlement.  Aggrieved individuals may include those who were:

• Injured by a lack of accessible features at The Helena, The Epic, or the other properties constructed by DURST;

• Discouraged from living at The Helena, The Epic, or the other properties constructed by DURST because of the lack of accessible features;

• Required to pay to have an apartment at The Helena, The Epic, or the other properties constructed by DURST made accessible,

• Prevented from having visitors because of a lack of accessible features at The Helena, The Epic, or the other properties constructed by DURST; or

• Otherwise injured or discriminated against on the basis of disability as a result of the design or construction of The Helena, The Epic, or the other properties constructed by Durst.

People who may be entitled to compensation should file a claim by contacting the Civil Rights Complaint Line at (212) 637-0840, using the Civil Rights Complaint Form available on the United States Attorney’s Office’s website http://www.justice.gov/usao/nys/civilrights.html, or sending a written claim to:

                        U.S. Attorney’s Office, Southern District of New York

                        86 Chambers Street, 3^rd Floor

                        New York, New York 10007

                        Attention:  Chief, Civil Rights Unit

The case is being handled by the Office’s Civil Rights Unit.  Assistant U.S. Attorneys Li Yu, Jessica Jean Hu, and Jacob Lillywhite are in charge of the case.